Shri Vankadari Chinna Reddeppa Chetty , Bangalore V. Income Tax Officer Ward-3(2)(1) , Bangalore

ITA 2736/BANG/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5013 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 15-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VENKATESH JDIT
• Keywords: Opportunity of being heard; Period of limitation; Time period of passing order; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI B.R BASKARAN, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR GADALE, JUDICIAL MEMBER ITA NO.2736/BANG/2017 ASSESSMENT YEAR : 2013-14 SHRI VANKADRI CHINNA REDDEPPA CHETTY, NO.1014, GROUND FLOOR, RAMYA SADANA, RPC LAYOUT, 11 TH MAIN, 2 ND STAGE, VIJAYANAGAR, BANGALORE-560 040. PAN AAGPC 1246 C. VS. THE INCOME-TAX OFFICER, WARD-3(2)(1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI BHARATH L, C.A RESPONDENT BY : SHRI S VENKATESH, JDIT (DR) DATE OF HEARING : 13.05.2019 DATE OF PRONOUNCEMENT : 17.05.2019 O R D E R PER SHRI B.R BASKARAN, ACCOUNTANT MEMBER THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 7/11/2017 PASSED BY LD CIT(A)-3, BANGALORE A ND IT RELATES TO THE ASST. YEAR 2013-14. ITA NO.2736/BANG/2017 PAGE 2 OF 7 2. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN DISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE FOR NOT FILING APPEAL PAPERS BY ELECTRONIC MODE. 3. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD . THE ASSESSMENT IN THE HANDS OF THE ASSESSEE FOR THE YEA R UNDER CONSIDERATION WAS COMPLETED BY THE AO ON 28/3/2016 AND NOTICE OF DEMAND WAS SERVED UPON THE ASSESSEE ON 31/3/2016. 4. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFE RRED APPEAL BEFORE THE LD CIT(A) BY FILING APPEAL PAPERS MANUAL LY ON 12/4/2016, I.E WITHIN THE TIME LIMIT PRESCRIBED FOR FILING APP EAL BEFORE THE LD CIT(A). THE FIRST APPELLATE AUTHORITY NOTICED THAT RULE 45 OF THE INCOME-TAX RULES REQUIRED THE ASSESSEE TO FILE THE APPEAL PAPERS BY ELECTRONIC MODE. SINCE THE ASSESSEE HAS FILED THE APPEAL MANUALLY AND THE SINCE THE SAME IS IN VIOLATION OF RULE 45 O F THE INCOME-TAX RULES AND ALSO UPON NOTICING THAT THE ASSESSEE HAS NOT FILED THE APPEAL PAPERS BY ELECTRONIC MODE TILL THE DATE OF P ASSING OF APPELLATE ORDER, THE LD CIT(A) DISMISSED THE APPEAL TREATING THE SAME AS INVALID ONE. 5. AGGRIEVED, THE ASSESSEE HAS FILED THIS APPEAL BE FORE US,. 6. THE LD AR APPEARING FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAS SINCE FILED THE APPEAL BY ELECTRONIC M ODE BEFORE THE LD CIT(A). HE FURTHER HE SUBMITTED THAT THE LD CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL ON TECHNICAL REASON, I.E., FOR FILING THE APPEAL MANUALLY. THE LD AR PLACED RELIANCE ON THE DECISION ITA NO.2736/BANG/2017 PAGE 3 OF 7 RENDERED BY THE MUMBAI BENCH OF ITAT IN THE CASE OF ALL INDIA FEDERATION OF TAX PRACTITIONERS VS. ITO IN ITA NO.7 134/MUM/2017 DATED 4/5/2018 AND SUBMITTED THAT THE LD CIT(A) MAY BE DIRECTED TO ADMIT THE APPEAL FILED ELECTRONICALLY AND THE D ELAY IN FILING THE APPEAL BY ELECTRONIC MODE MAY BE CONDONED. 7. THE LD DR, ON THE CONTRARY PLACED RELIANCE ON TH E ORDER PASSED BY THE LD CIT(A). 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WE NOTICED THAT AN IDENTICAL ISSUE HAS BEEN CONSIDE RED BY THE MUMBAI BENCH OF TRIBUNAL IN THE CASE OF ALL INDIA F EDERATION OF TAX PRACTITIONERS (SUPRA). FOR THE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE DECISION RENDERED BY THE MUMBAI BENCH IN THE AB OVE SAID CASE. 6. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS ORDERS PASSED BY THE REVENUE AUTHORITIES. FROM THE RECORDS WE NOTICED THAT ELECT RONICALLY FILING OF THE APPEALS WAS INTRODUCED FOR THE FIRST TIME VIDE RULE 45 OF I.T. RULES 1962, MANDATING COMPULSORY C- FILING OF APPEALS BEFORE APPELLATE COMMISSIONER WITH EFFEC T FROM LST MARCH 2016. WE NOTICED THAT IN THIS RESPECT, TH ERE IS NO CORRESPONDING AMENDMENT IN ANY OF THE PROVISIONS OF THE SUBSTANTIVE LAW I.E I.T. ACT, 1961. AS PER THE FACTS OF THE PRESENT CASE, THE ASSESSMEN T IN THE ABOVE CASE WAS COMPLETED U/S 143(3) OF THE I .T. ACT 1961. HOWEVER THE ASSESSEE HAS FILED APPEAL BEFORE LD CIT(A) IN PAPER FORM AS PRESCRIBED UNDER THE PROVIS IONS OF I.T. ACT 1961 WITHIN THE PRESCRIBED PERIOD OF LIMIT ATION. BUT THE SAME WAS DISMISSED BY LD. CIT(A) BY HOLDING THA T ASSESSEE HAD NOT FILED APPEAL THROUGH ELECTRONIC FO RM, WHICH IS MANDATORY AS PER I.T. RULES 1962. ITA NO.2736/BANG/2017 PAGE 4 OF 7 AFTER HAVING CONSIDERED THE ENTIRE FACTUAL POSITION , WE FIND THAT HON'BLE SUPREME COURT IN THE CASE OF ' STATE OF PUNJAB VS.SHYAMALAIMURARI AND OTHERS REPORTED IN AI R 1976 (SC) 1177' HAS CATEGORICALLY HELD THAT COURTS SHOULD NOT GO STRICTLY BY THE RULEBOOK TO DENY JUSTICE TO THE DESERVING LITIGANT AS IT WOULD LEAD TO MISCARRIAGE OF JUSTICE. IT HAS BEEN REITERATED BY THE HON'BLE SUPR EME COURT THAT ALL THE RULES OF PROCEDURE ARE HANDMAID OF JUSTICE. THE LANGUAGE EMPLOYED BY THE DRAFTSMAN OF PROCEDURAL LAW MAY BE LIBERAL OR STRINGENT, BUT THE FACT REMAINS THAT THE OBJECT OF PRESCRIBING PROCEDURE IS TO ADVANCE THE CAUSE OF JUSTICE. THE HON'BLE APEX COURT HAS SAID IN AN 'ADVERSARIAL' SYSTEM, NO PARTY SHOULD ORDINARILY BE DENIED THE OPPORTUNITY OF PARTICIPATING IN THE PROCESS OF JUST ICE DISPENSATION. THE HON'BLE SUPREME COURT IN ITS JUDGMENT REPORTED AS AIR 2005 (SC) 3304 IN THE CASE OF 'RANIKUSUMVRS. KANCHAN DEVI,' REITERATED THAT, A PROCEDURAL LAW SH OULD NOT ORDINARILY BE CONSTRUED AS MANDATORY, AS IT IS ALWAYS SUBSERVIENT TO AND IS IN AID OF JUSTICE. ANY INTERP RETATION, WHICH ELUDES OR FRUSTRATES THE RECIPIENT OF JUSTICE , IS NOT TO BE FOLLOWED. FROM THE FACTS OF THE PRESENT CASE, WE GATHERED THAT THE ASSESSEE HAD ALREADY FILED THE APPEAL IN P APER FORM, HOWEVER ONLY THE C-FILING OF APPEAL HAS NOT B EEN DONE BY THE ASSESSEE AND ACCORDING TO US, THE SAME IS ONLY A TECHNICAL CONSIDERATION. IN THIS RESPECT, WE RELY UPON THE JUDGMENT OF HON'BLE SUPREME COURT, WHEREIN THE HON'BLE SUPREME COURT HAS REITERATED THAT IF IN A G IVEN CIRCUMSTANCES, THE TECHNICAL CONSIDERATION AND SUBS TANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THEN IN THAT EVENTUALITY THE CAUSE OF SUBSTANTIAL JUSTICE DESER VES TO BE PREFERRED AND CANNOT BE OVERSHADOWED OR NEGATI VED BY SUCH TECHNICAL CONSIDERATIONS. ITA NO.2736/BANG/2017 PAGE 5 OF 7 APART FROM ABOVE WE HAVE ALSO NOTICED THAT THE COORDINATE BENCH OF HON'BLE ITAT DELHI BENCH IN APP EAL ITA NO. 6595/DEL/16 IN CASE TITLED GURINDER SINGH D HILLON VRS. ITO HAD RESTORED THE MATTER TO THE FILE OF LD. CIT(A) UNDER IDENTICAL CIRCUMSTANCES WITH A DIRECTION DO D ECIDE APPEAL AFRESH ON MERIT, AFTER CONDONING THE DELAY, IF ANY. SINCE IN THE PRESENT CASE, WE FIND THAT APPEAL IN T HE PAPER FORM WAS ALREADY WITH LD. CIT(A), THEREFORE I N THAT EVENTUALITY THE LD. CIT(A) OUGHT NOT TO HAVE DISMIS SED THE APPEAL SOLELY ON THE GROUND THAT THE ASSESSEE HAS N OT FILED THE APPEAL ELECTRONICALLY BEFORE THE APPELLAT E COMMISSIONER. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES AS WELL AS THE CASE LAWS DISCUSSED AND RELIED UPON ABOVE, W E ARE OF THE CONSIDERED VIEW THAT THE CAUSE OF JUSTICE WO ULD BE SERVED IN CASE, WE SET ASIDE THE ORDERS OF LD. CIT( A) & ALLOW THE PRESENT APPEAL. WHILE SEEKING THE COMPLIA NCE, WE DIRECT THE ASSESSEE TO FILE THE APPEAL ELECTRONI CALLY WITHIN 10 DAYS FROM THE DATE OF RECEIPT OF THIS ORD ER. IN CASE, THE DIRECTIONS ARE FOLLOWED THEN IN THAT EVEN TUALITY, THE DELAY IN E-FILING THE APPEAL SHALL STAND CONDON ED. LD. CIT(A) IS FURTHER DIRECTED TO CONSIDER THE APPEAL F ILED BY THE ASSESSEE ON MERITS BY PASSING A SPEAKING ORDER. RESULTANTLY, WE ALLOW THE APPEAL FILED BY THE ASSESSEE. 9. WE NOTICED THAT MUMBAI BENCH HAS CONDONED THE DE LAY IN FILING THE APPEAL BY ELECTRONIC MODE. IN THE INSTA NT CASE WE HAVE EARLIER NOTICED THAT THE ASSESSEE HAS FILED THE APP EAL MANUALLY WITHIN THE LIMITATION PERIOD. HENCE THE DELAY IN F ILING THE APPEAL BY ELECTRONIC MODE IS HEREBY CONDONED BY FOLLOWING THE DECISION RENDERED BY MUMBAI BENCH IN THE ABOVE SAID CASE. 10. SINCE THE LD CIT(A) HAS NOT ADJUDICATED THE ISS UES URGED ON MERITS, WE DIRECT THE LD CIT(A) TO ADJUDICATE THE I SSUES URGED ON ITA NO.2736/BANG/2017 PAGE 6 OF 7 MERITS BY PASSING SPEAKING ORDER AFTER AFFORDING AD EQUATE OPPORTUNITY OF BEING HEARD. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSES SEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH MAY, 2019. SD/- (LALIET KUMAR) JUDICIAL MEMBER SD/- (B.R BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED, 17 TH MAY, 2019. / VMS / COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3 . THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER A SST. REGISTRAR, ITAT, BANGALORE.